Delhi High Court
Pan Parag India Ltd. vs Director General Of Foreign Trade ... on 15 March, 2016
Author: Manmohan
35 & 36
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2160/2016
PAN PARAG INDIA LTD. ..... Petitioner
Through: Mr. Pankaj Bhatia, Advocate with
Mr. Dhruv Surana and Mr. Nipun Goel,
Advocates.
versus
DIRECTOR GENERAL
OF FOREIGN TRADE & ANR. ..... Respondents
Through: Mr. Vineet Malhotra, Advocate with
Mr. Vishal Gohri and Mr. Shubhendu
Kaushik, Advocates for respondent
No.1.
Mr. S.K. Dubey, Advocate with
Mr. Udit Malik, Advocate for
respondent No.2.
And
+ W.P.(C) 2174/2016
KOTHARI PRODUCT LTD. ..... Petitioner
Through: Mr. Pankaj Bhatia, Advocate with
Mr. Dhruv Surana and Mr. Nipun Goel,
Advocates.
versus
DIRECTOR GENERAL
OF FOREIGN TRADE & ANR. ..... Respondents
Through: Mr. Vineet Malhotra, Advocate with
Mr. Vishal Gohri and Mr. Shubhendu
Kaushik, Advocates for respondent
No.1.
Mr. S.K. Dubey, Advocate with
W.Ps.(C) 2160/2016 & 2174/2016 Page 1 of 6
Mr. Udit Malik, Advocate for
respondent No.2.
% Date of Decision: 15th March, 2016
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
CM Appl. 9231/2016 (exemption) in W.P.(C) 2160/2016
CM Appl. 9313/2016 (exemption) in W.P.(C) 2174/2016
Allowed, subject to all just exceptions.
W.P.(C) 2160/2016 & CM Appl. 9230/2016
W.P.(C) 2174/2016 & CM Appl. 9312/2016
1. Present writ petitions have been filed seeking a direction to respondent
No.1-Director General of Foreign Trade, not to proceed with the cases under
Section 16 of the Foreign Trade (Development and Regulation) Act, 1992
(hereinafter referred to as „the Act, 1992‟).
2. In the petitions, it has been averred that the respondent No.1 has no
jurisdiction to decide the review applications filed at the instance of DRI.
3. Learned counsel for petitioners states that Section 16 of the Act, 1992
does not confer the power of review in individual cases which have been
passed by adjudicating authorities and which are subject matter of appeals.
In support of his submission, he relies upon a judgment of this Court in
Samir Kohli & Ors. Vs. Union of India & Ors., W.P.(C) 4489/1995. The
relevant portion of the said judgment is reproduced hereinbelow: -
―28. ................... It is in this context that the power under
Section 41 has been given to the Central Government. That
provision reads as follows:
41. Control by Central Government (1) The Authority shall
carry out such directions as may be issued to it from time to
time by the Central Government for the efficient administrative
of this Act.
(2) If in, or in connection with, the exercise of its powers and
discharge of its functions by the Authority under this Act, any
dispute arises between the Authority and the Central
Government the decision of the Central Government on such
dispute shall be final. (3) The Central Government may, at any
time, either on its own motion, or on application made to it in
this behalf, call for the records of any case disposed of or
order passed by the Authority for the purpose of satisfying
itself as to the legality or propriety of any order passed or
direction issued and may pass such order or issue such
direction in relation thereto as it may think fit: Provided that
the Central Government shall not pass any order prejudicial to
any person without affording such person a unreasonable
opportunity of being heard.‖
xxx xxx xxx
29. The question whether the power under Section 41 (3) is quasi-
judicial or not has to be contextualized in the overall setting of
the provision. DDA in its myriad functions, as policy maker, town
planner, agency for implementation of housing and other building
policies, is obliged to decide various issues. Most of these are not
judicial, or quasi judicial; they are certainly administrative in
nature and require application of mind to the relevant
considerations. Thus, for instance, if the DDA has to decide
whether a class of services ought to be permitted within a
residential locality, it would have to first see the relevant
provisions of the Master Plan; it would also consider the impact
of its decisions, on the amenities existing in the area, and the
likely additional pressures which they would be subjected to, etc.
However, the interested parties cannot claim as a matter of right
that their proposals ought to be accepted, or that the DDA should
give each of them, a hearing, and issue a reasoned order. Now, in
a given case, concerning an individual or a collective, such as a
co-operative society, the same considerations would apply. If the
DDA consequently, forms an opinion in such individual cases,
those decisions would not stand on a different footing from the
larger policy paradigm with which Sections 41 (1) and 41 (2) are
concerned. Unless it is shown that the decision in an individual
case is likely to result in an adverse consequence to the party
concerned (i.e for instance change of plot user in a lay-out plan,
in the case of a plot owner or plot-allottee from commercial to
residential, etc) the decision cannot be considered ―quasi
judicial‖. Even so, the safeguard, to allay all apprehensions, is
enacted through the proviso to Section 41 (3) that an order which
can result in an adverse consequence to a party, should be
preceded by notice to her (or him).
30. There is another way of looking at the matter. If one views the
power of the Central Government in the overall setting of a law
that essentially deals with town planning, the ―dispute‖ between
DDA and the Central Government is a unique one; it is as to the
policy that the former has to adopt. Thus, the view of the latter is
given primacy. In amplification of this power, it is clarified, by
Section 41 (3) that the Central Government can reverse decisions
of DDA, in pending or closed cases. In such an eventuality, the
DDA would be the ―aggrieved party‖ so to speak. If the logic of a
dispute, to be decided by the Central Government in a ―quasi
judicial‖ capacity is to be accepted, it would lead to startling
results. Town planning would be chaotic, and paralysed; every
decision of the DDA, which implicates ―a case‖ would be
reviewable under Section 41 (3) and the DDA as well as the
concerned party would have to be heard; the Central Government
would then have to issue detailed reasoned orders. This would
bog the entire process of planning and implementation of the
Master and other plans in a modern, and efficient manner - a
result surely not intended by Parliament. It is thus held that the
power under Section 41 (3) of the Act is a supervisory one, and
not ―quasi-judicial‖ in the sense traditionally understood.
However, there can be no doubt that whatever be the character of
the order, it would be reviewable under Article 226 of the
Constitution, in terms of the settled authorities, on the basis of
established public law principles, to the extent such orders are
reviewable.‖
4. Having heard learned counsel for petitioners, this Court is of the view
that Section 16 of the Act, 1992 confers very wide powers of review upon
the Director General. The relevant portion of the said Section reads as
under:-
―16. Review.--The Central Government, in the case of any
decision or order made by the Director-General, or the Director-
General in the case of any decision or order made by any officer
subordinate to him, may on its or his own motion or otherwise,
call for and examine the records of any proceeding for the
purpose of satisfying itself or himself, as the case may be, as to
the correctness, legality or propriety of such decision or order
and make such orders thereon as may be deemed fit.‖
(emphasis supplied)
5. This Court is of the view that the Director General has full power to
deal with an application filed by DRI inasmuch as the power of review can
be exercised by the Director General either suo motu or „otherwise‟.
6. In the opinion of this Court, Section 16 of the Act, 1992 clearly
contemplates review of judicial orders also inasmuch as it states that the
reviewing authority may ―call for and examine the records of any
proceedings‖. The said expression is missing in Section 41 of the DDA Act,
1957.
7. Further, the judgment in Samir Kohli (supra) is clearly inapplicable to
the facts of the present case as it deals with Section 41 of the Delhi
Development Act, 1957, which is not pari materia to the present case. In any
event, the scheme of Delhi Development Act, 1957 (for short "DDA Act,
1957"), is entirely different from the Act, 1992.
8. In fact, the Supreme Court in Union of India and Others Vs.
Dhanwanti Devi and Others, (1996) 6 SCC 44 has held as under:-
―10. Therefore, in order to understand and appreciate the binding
force of a decision it is always necessary to see what were the facts in
the case in which the decision was given and what was the point
which had to be decided. No judgment can be read as if it is a
statute........‖
(emphasis supplied)
9. Further, the Supreme Court in Padma Sundara Rao (Dead) and
Others Vs. State of T.N. and Others, (2002) 3 SCC 533 has held as under:-
―9. Courts should not place reliance on decisions without discussing
as to how the factual situation fits in with the fact situation of the
decision on which reliance is placed. There is always peril in treating
the words of a speech or judgment as though they are words in a
legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case,
said Lord Morris in Herrington Vs. British Railways Board (1972) 2
WLR 537 : 1972 AC 877 (HL). Circumstantial flexibility, one
additional or different fact may make a world of difference between
conclusions in two cases.‖
(emphasis supplied)
10. Keeping in view the aforesaid, this Court is of the view that the
present writ petitions are bereft of merit. Accordingly, the same are
dismissed.
MANMOHAN, J
MARCH 15, 2016
js
